[GTALUG] Addressing one of our longest-standing legal problems

David Collier-Brown davec-b at rogers.com
Mon Jun 25 10:05:22 EDT 2018


Many moons ago, ISPs were concerned that they would be legally required 
to eavesdrop on their customers, and the GTALUG board spun off a group 
to follow and comment on legalistic and political matters.

The posting below is specifically about misbehavior by Telus, but it's 
also a potted history of the improvement of the situation in Canada over 
time, and over the US, where stored communications cab be seized without 
a warrant.

--dave
[This is a resend: the first one was too big]

-------- Forwarded Message --------
Subject: 	Telus Texts Not Intercepted When Stored
Date: 	Mon, 25 Jun 2018 03:37:59 +0000
From: 	Omar Ha-Redeye <>


http://www.slaw.ca/2018/06/24/telus-texts-not-intercepted-when-stored/

Telus Texts Not Intercepted When Stored

Many Canadians confuse the law when it comes to recording telephone 
conversations, likely due to exposure to American concepts in the media. 
Although the Wiretap Act of 1968 (18 U.S.C. § 2511) contains a one-party 
consent rule, a dozen states have a two-party consent that supersedes 
American Federal law, and given its presence in California (Cal. Penal 
Code § 632), it’s likely that this is often the source of the 
misunderstanding in Canada.

In Canada, we have Part VI 
<https://qweri.lexum.com/w/calegis/rsc-1985-c-c-46-en#%21fragment/PART_VI_Invasion_of_Privacy_779805/KGhhc2g6KGNodW5rxIVhbsSHb3JUZXh0OlBBUlRfVklfSW52xIJpb25fb2ZfUHJpxKFjeV83Nzk4MDUpLG5vdGVzUXVlcnk6Jycsc2Nyb2xsQ8SIxIo6IW7FhmVhcsSHxL7FgMWCxYTFk8WVxIdTxJB0QsWCUkVMRVZBTkNFLHRhYjp0b2MpKQ==> 
of the Criminal Code, which states,


                Consent to interception

    *183.1* Where a private communication is originated by more than one
    person or is intended by the originator thereof to be received by
    more than one person, a consent to the interception thereof by any
    one of those persons is sufficient consent for the purposes of any
    provision of this Part.

An unauthorized interception is subject to an indictable offence, and 
serves to protect against the invasion of privacy. These provisions are 
also applicable to law enforcement, limiting the ability of the police 
to eavesdrop into the conversations of Canadian citizens.

The Court in /R. v. Duarte / <http://canlii.ca/t/1fszz>explained the 
rationale for this as follows,

    The rationale for regulating the power of the state to record
    communications that their originator expects will not be intercepted
    by anyone other than the person intended by the originator to
    receive it (see definition section of Part IV.1 of the/ Code/) has
    nothing to do with protecting individuals from the threat that their
    interlocutors will divulge communications that are meant to be
    private. No set of laws could immunize us from that risk. Rather,
    the regulation of electronic surveillance protects us from a risk of
    a different order, i.e., not the risk that someone will repeat our
    words but the much more insidious danger inherent in allowing the
    state, in its unfettered discretion, to record and transmit our words.

      The reason for this protection is the realization that if the
    state were free, at its sole discretion, to make permanent
    electronic recordings of our private communications, there would be
    no meaningful residuum to our right to live our lives free from
    surveillance. The very efficacy of electronic surveillance is such
    that it has the potential, if left unregulated, to annihilate any
    expectation that our communications will remain private. A society
    which exposed us, at the whim of the state, to the risk of having a
    permanent electronic recording made of our words every time we
    opened our mouths might be superbly equipped to fight crime, but
    would be one in which privacy no longer had any meaning. As Douglas
    J., dissenting in/ United States v. White/,/ supra/, put it, at p.
    756: “Electronic surveillance is the greatest leveler of human
    privacy ever known.” If the state may arbitrarily record and
    transmit our private communications, it is no longer possible to
    strike an appropriate balance between the right of the individual to
    be left alone and the right of the state to intrude on privacy in
    the furtherance of its goals, notably the need to investigate and
    combat crime.

There are several mechanisms through which law enforcement can obtain 
this information. The first is through a wiretap under a Part VI 
authorization, which can include a general wiretap authorized under s. 
185 and 186, a wiretap with consent under s. 184, and an emergency 
wiretap under s. 184.4 and 188. The latter two do not require full 
judicial authorization, but a reasonable belief is required that a 
specific offence has been, is being, or is about to be committed. Police 
are required to have reasonable and probably grounds to believe that the 
target of the wiretap will be engaging in a particular communication 
that will provide evidence for an investigation.

A less common way to obtain communications information would be through 
using a Production Order under 
s. 487.012<https://qweri.lexum.com/calegis/rsc-1985-c-c-46-en#%21fragment/sec487.012> of 
the /Criminal 
Code<https://qweri.lexum.com/calegis/rsc-1985-c-c-46-en>/ (now 
s. 487.014 , 
<https://qweri.lexum.com/calegis/rsc-1985-c-c-46-en#%21fragment/sec487.014>following 
Bill C-13: Protecting Canadians from Online Crime Act 2014). A 
Production Order has a much less stringent requirements than a Part VI 
authorization, but its use is limited by the technological practices 
employed by different telecommunication companies.

The Court in /R. v. Marakah / 
<https://www.canlii.org/en/ca/scc/doc/2017/2017scc59/2017scc59.html>confirmed 
last year that both sent and received text messages can potentially 
attract a reasonable expectation of privacy, and therefore receive s. 8 
/Charter /protections. The companion case of /R. v. Jones 
<http://canlii.ca/t/hp63x> /examined the use of a Production Order to 
obtain some text messages given the privacy expectations that text 
messages should receive.

The police in this case were able to obtain incriminating text messages 
because the service provider here, Telus, maintained a copy of sent and 
received texts on their servers for service purposes. The obtained 
several Production Orders against other service providers as well, but 
because they did not store the texts in this way they could not be 
provided to the police. They are legally entitled to do so under an 
exception in s. 184(2) of the /Code. /

The significance of this unique practice was highlighted in the Court’s 
2013 decision in /R. v. TELUS Communications Co. / 
<https://www.canlii.org/en/ca/scc/doc/2013/2013scc16/2013scc16.html>where 
the Court stated,

    [59] The fact that Telus stores its subscribers’ text messages in
    this manner is significant — indeed, it is the reason this appeal
    exists — because it creates an investigative resource for the
    authorities.

This decisions was released during the accused’s trial in /Jones/, but 
the trial judge dismissed the application to re-open the s. 8 ruling. 
The Court in /Jones /referred to the /TELUS /case as follows,

    [44] /TELUS/ implicitly acknowledges that, as a normative matter, it
    is reasonable to expect a service provider to keep information
    private where its receipt and retention of such information is
    incidental to its role of delivering private communications to the
    intended recipient. That is intuitive. One would not reasonably
    expect the service provider to share his text messages with an
    unintended recipient, or post them publicly for the world to see.

Despite this reasonable expectation of privacy in the subject matter of 
the texts, the Court’s analysis focused on the reasonableness of the 
search itself through the use of a Production Order as opposed to a Part 
VI authorization. This issue was not addressed in /TELUS/, which instead 
focused on prospective production of future text messages under Part VI 
authorizations for future communications.

The majority’s decision hinged on an interpretation of the provisions by 
distinguishing interception and disclosure, the former requiring a 
prospective application of information. A Production Order, in contrast, 
was providing a copy of records that Telus had already intercepted and 
stored, and had done so lawfully under the Part VI exceptions. The 
majority of the Court concluded,

    [77] In short, the state action in this case respected Part VI’s
    distinction between the interception of communications in ss. 184 to
    192 and the disclosure of previously intercepted and stored
    communications as contemplated by s. 193. Based on the evidence, it
    also respected the requirement in /TELUS/ that a Part VI
    authorization be obtained for text messages that are still in the
    transmission process. Law enforcement cannot receive authorization
    to effectively intercept future communications through the
    “backdoor” of the general search and seizure regime in s. 487 of the
    /Code/. But law enforcement could — and did, in this case — lawfully
    obtain records of historical text messages by means of a Production
    Order under s. 487.012 of the /Code/ (as they can still do now under
    s. 487.014).

    …

    [80] Production orders must therefore be carefully circumscribed to
    ensure that authorized police techniques comply with s. 184(1)
    <https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec184subsec1_smooth>.
    A production order must not authorize, or potentially authorize, the
    production of any text messages that are either not yet in existence
    or are still capable of delivery at the time the order is issued.
    This should be clear from the face of the order. Where the technique
    at issue is an intercept within the meaning of s. 184(1)
    <https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec184subsec1_smooth>,
    then the application is properly rejected and a Part VI
    authorization must be obtained. A production order should not be
    used to sidestep the more stringent Part VI authorization requirements.

The challenge with applying this ruling is that it necessarily involves 
the invasion of privacy and disclosure of information of individuals who 
may not be using Telus, but are communicating with an individual who is. 
Despite the lawful authorization of the mechanism in this way, 
Parliament could not have envisioned the unique practices employed by a 
single service provider in this manner, and the use of the statute to 
benefit from it as a result.

These problems were highlighted by Justice Abella’s dissent,

    [105] The only difference between /TELUS/, dealing with prospective
    text messages, and this case, dealing with historical text messages,
    is the timing of the state’s request for authorization. This was
    reinforced by the intervener Criminal Lawyers’ Association of
    Ontario in its factum where it said that, “[t]echnologically
    speaking, [/TELUS/] and [Mr. Jones’] case are identical: a private
    communication is made, it is then stored on the company’s computer,
    and then the state acquires it” (para. 16). If the term “intercept”
    in s. 183
    <https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec183_smooth> is
    interpreted in the context of the broader Part VI scheme and the
    purpose that it is meant to serve, namely, to prevent the state
    acquisition of private communications without lawful authorization
    and to protect the privacy interests inherent in the content of
    private communications, then the Part VI protections should not
    fluctuate with the timing of the state’s interception of a private
    communication. As noted in /TELUS/,interpreting the phrase
    “intercept[ion] [of] a private communication” must “focus on the
    acquisition of informational content and the individual’s
    expectation of privacy at the time the communication was made”
    (para. 36).
    [emphasis added]

Highlighting the timing as the only distinction between a Part VI 
authorization and a Production Order would have the effect of allowing 
law enforcement to essentially create repeated Production Orders over a 
period of time that would create a record similar to that of a Part VI 
authorization. Although it would not have the benefit of being able to 
prevent crimes from occurring, it would create the type of evidentiary 
record that would have a significant effect on providing incriminating 
statements against an accused, thereby having a significant impact on 
the /Charter/-protected interests of the accused (the 2nd step of the 
24(2) analysis under /Grant/).

More importantly, the evidence provided here did not originate from any 
legal distinctions between a Part VI authorization or a Production 
Order, but the unusual practices of a particular company,

    [113] In this case, the police obtained several Production Orders
    pursuant to s. 487.012
    <https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec487.012_smooth> of
    the /Criminal Code
    <https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html>/ directed
    at the service providers Bell, Rogers and Telus. Only Telus stored
    the content of incoming and outgoing text messages for a period of
    time after the messages were sent and received. No text messages
    were obtained from accounts held with the other service providers.
    Telus’ unique storage practices, rather than the underlying
    principles in Part VI, led to the production of copies of historical
    text messages from the targeted Telus account, and the loss of Mr.
    Jones’ privacy protections available under Part VI of the /Criminal
    Code
    <https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html>/.
    Again,the applicability of Part VI should depend on the substance of
    what the investigative technique seeks to access, not on the timing
    of when access is sought, or on the vagaries of the service
    provider’s technological practices.

    [emphasis added]

Justice Abella cited the evolution of shifting technology that has 
resulted in corresponding jurisprudence that attempts to keep up with 
the impact of these technological changes on the constitutional rights 
of an accused.

The Court in /Marakah/ attempted to protect these interests by 
prioritizing the private nature of text message information, and the 
informational content relating to the biographical core of the 
individual, rather than weighing the location of the search too heavily,

    [37] Electronic conversations, in sum, are capable of revealing a
    great deal of personal information. Preservation of a “zone of
    privacy” in which personal information is safe from state intrusion
    is the very purpose of s. 8
    <https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth> of
    the /Charter
    <https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html>/:
    see /Patrick/, at para. 77, per Abella J. As the foregoing examples
    illustrate, this zone of privacy extends beyond one’s own mobile
    device; it can include the electronic conversations in which one
    shares private information with others. It is reasonable to expect
    these private interactions — and not just the contents of a
    particular cell phone at a particular point in time — to remain private.

However, this same emphasis on the private nature of the information 
does not feature as prominently in evaluating the reasonableness of how 
law enforcement can infringe on this zone of privacy through a search. 
The unreasonableness of the search was not disputed in /Marakah/, where 
text messages were used from a co-accused’s phone against him.

Instead, the majority in /Marakah /anticipate at para 53 “that the 
justice system [will] adapt to the challenges of recognizing that some 
text message conversations may engage s. 8 
<https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth> of 
the /Charter, 
<https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html>/” 
even as societal interests in protecting privacy interests outweigh the 
state’s interest in effective law enforcement.

While this case law continues to develop, the jurisprudential gap 
between Production Orders and Part VI authorizations, in light of 
changing technological practices, may also warrant a review of these 
provisions by the legislature to better regulate the state’s discretion 
to record and transmit our words.

{picture was here}

(From Left:) Darryl Singler, Omar Ha-Redeye, Jon Rinaldi, Samatha 
Biglou, and Tara Brun, judging the 2018 Lions Cup on R. v. Jones, 2017, 
on June 24, 2018.

<http://feeds.feedburner.com/%7Eff/slaw/IkMK?a=99LrVPMw5RM:0O2YqRCQrGg:gCN0Ie6HRBo> 
<http://feeds.feedburner.com/%7Eff/slaw/IkMK?a=99LrVPMw5RM:0O2YqRCQrGg:ACf-c_HutVc> 
<http://feeds.feedburner.com/%7Eff/slaw/IkMK?a=99LrVPMw5RM:0O2YqRCQrGg:yIl2AUoC8zA> 
<http://feeds.feedburner.com/%7Eff/slaw/IkMK?a=99LrVPMw5RM:0O2YqRCQrGg:I9og5sOYxJI> 
<http://feeds.feedburner.com/%7Eff/slaw/IkMK?a=99LrVPMw5RM:0O2YqRCQrGg:qj6IDK7rITs> 

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